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Ford v. Lamb

United States District Court, N.D. Illinois, Western Division

January 10, 2017

Hundley Ford, Jr., Petitioner,
v.
Michael Lamb, Acting Warden, Stateville Correctional Center, Respondent.

          ORDER

          Philip G. Reinhard Judge.

         For the following reasons, petitioner's 28 U.S.C. § 2254 petition to reduce his sentence [1] is denied. The court declines to issue a certificate of appealability. The matter is terminated.

         STATEMENT-OPINION

         This matter pertains to the 28 U.S.C. § 2254 petition petitioner Hundley Ford, Jr. filed in this court, challenging his 2007 Illinois criminal conviction for attempted murder, aggravated battery with a firearm, aggravated discharge of a firearm, and unlawful possession of a firearm by a felon. Petitioner argues that his appellate counsel on direct appeal was ineffective for failing to argue that the prosecution at trial had fabricated a demonstrative exhibit diagram in a way that did not reflect the evidence.

         The charges resulted from a domestic violence incident in and outside petitioner's apartment in which petitioner fired several shots, including one that hit his wife, Wanda Ford. Wanda Ford had given multiple statements and testimony regarding the events in question, which essentially took place in three phases. First, the initiation of the altercation; second, the altercation in petitioner's apartment; and third, petitioner's actions after she left the apartment.

         In all accounts, Wanda Ford was consistent about the first phase. She had arrived at petitioner's apartment, at his request, in a car with two other persons. She entered the apartment alone, where she had an altercation with petitioner. Petitioner pulled a gun from his pants and she charged him. During the struggle, the pair moved into petitioner's bedroom while petitioner told her that he was going to kill her.

         However, Wanda Ford's account of the second phase varied. Shortly after the incident occurred, she told detectives that the gun first discharged while she and petitioner were on the box spring in his bedroom, petitioner fired a second time and shot her while she was standing up, he shot at her a third time as she left the bedroom, and again a fourth time while she was exiting the apartment. Wanda Ford testified consistently with this story at petitioner's preliminary hearing, at which time the prosecution first introduced a diagram with gunshot indications based on her testimony. The diagram, labeled exhibit PH13, showed four gunshots in the apartment, including three gunshots in the bedroom area and one by the front door. At trial, however, Wanda Ford initially testified that the gun discharged once while she and petitioner were struggling on the box spring and once as she was exiting the apartment. On cross examination, she then clarified that the gun was fired twice in the bedroom and once as she was exiting the apartment.

         Finally, in all accounts Wanda Ford was consistent about the third phase of the altercation with petitioner. After Wanda Ford fled the apartment, petitioner fired two shots into the car as she was approaching it. Not being able to get inside the car, she played dead on the ground. She heard petitioner say her name and then the click of a gun without ammunition failing to fire.

         During the prosecution's case-in-chief at trial, as noted, Wanda Ford initially testified that there had been two shots in the apartment, and on cross examination testified that there had been three shots in the apartment. The state played the recording of Wanda Ford's testimony during the preliminary hearing, suggesting four shots in the apartment, and introduced the PH13 diagram, which indicated three shots in or around the bedroom and one by the front door. On the other hand, despite introducing the preliminary hearing testimony and PH13, the prosecution repeatedly referenced Wanda Ford's trial testimony that there had been three shots fired in the apartment. Notably, however, state investigators recovered physical evidence of only two gunshots fired in the apartment. On the other hand, the officers testified that physical evidence of a gunshot is not always recoverable at every crime scene.

         Following the prosecution's case-in-chief, petitioner testified that he had no intent to kill Wanda Ford. For support, he testified consistently with the physical evidence recovered at the scene that the gun discharged only two times in the apartment. According to petitioner, the gun fired once accidentally in the bedroom while he was struggling with Wanda Ford and once while he fired a “warning shot” down the stairs as she was leaving the apartment. He also testified that he fired the gun twice outside the apartment when he panicked and fired into the car, believing that he saw one of the occupants holding a gun and swinging around toward him. During arguments, defense counsel referred to the number of gunshots fired in the house as a “gray area.” See [23-17] at 6. Following trial, as noted, petitioner was convicted of attempted murder (against Wanda Ford), aggravated battery with a firearm, aggravated discharge of a firearm, and unlawful possession of a firearm by a felon.

         Petitioner appealed his conviction in state court, arguing in relevant part that the prosecution knowingly used false evidence in his trial by presenting and relying on the testimony of Wanda Ford at trial that there were three shots fired in the apartment. Petitioner argued that this was contradicted by the physical evidence, which only suggested two shots fired in the apartment. The Illinois Appellate Court upheld the conviction. See [23-10]. The appellate court noted that the prosecution's repeated reference to three shots being fired in the apartment was consistent with at least some versions of Wanda Ford's testimony, and as such it was not “falsified” evidence. Further, in rejecting petitioner's argument regarding the physical evidence, the appellate court noted that there was testimony by officers at trial that not all projectiles fired can be recovered at every crime scene. See [23-10] at 24. A PLA to the Illinois Supreme Court was denied.

         Petitioner later filed a state court petition for postconviction relief, arguing in relevant part that the prosecution had falsified evidence by improperly using the PH13 diagram based on Wanda Ford's preliminary hearing testimony, which they knew to be contrary to the physical evidence. Petitioner also challenged his appellate counsel for failing to raise this claim on his direct appeal.

         The trial court denied the postconviction petition. See [23-14]. The Illinois Appellate Court affirmed. See [23-17]. The appellate court noted that appellate counsel on direct appeal had raised a nearly identical issue on direct appeal, namely that the prosecution falsified evidence by improperly relying on Wanda Ford's testimony that there were three shots fired, despite the physical evidence only supporting two shots. The underlying theory of both claims was that the prosecution improperly relied on evidence of more than two shots when its physical evidence only supported two shots. The appellate court concluded that petitioner's preferred issue regarding PH13 was no more persuasive than the one direct appeal appellate counsel actually raised, and therefore counsel could not be found deficient. See Id. at 17-18. The appellate court next found that petitioner was not prejudiced by his direct appeal appellate counsel's failure to raise the PH13 diagram issue because the record did not show that the diagram was falsified or that the prosecution knew it was falsified. Diagram PH13 indicated four shots fired in the apartment, while the prosecution repeatedly referred to three shots fired, but both were based on Wanda Ford's testimony at various times. Thus, diagram PH13 was not falsified evidence. Further, the appellate court again found that petitioner's argument regarding the investigator's failure to find evidence of more than one gunshot in the apartment was insufficient, especially given officers' testimony at trial that not all evidence of gunshots will be recoverable in every crime scene.

         Following the denial of his state postconviction petition, petitioner filed a § 2254 in this court, reiterating his argument that his direct appeal appellate counsel was ineffective for failing ...


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